Exclusive and Concurrent Powers on Fire

Interpreting Power: navigating exclusive and concurrent jurisdictions related to "immigration" through a Constitutional lens

A protection against invasion is due from every society to the parts composing it. The latitude of the expression here used seems to secure each State, not only against foreign hostility, but against ambitious or vindictive enterprises of its more powerful neighbors. The history, both of ancient and modern confederacies, proves that the weaker members of the union ought not to be insensible to the policy of this article.
James Madison, Federalist No. 43

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Introductory Summary

The United States Supreme Court occupies a unique and vital role in the American governmental system, as meticulously outlined in the Constitution and specified in the Federalist Papers. The Constitution establishes the Court as the apex judicial authority, with Article III delineating its jurisdiction, including the power of judicial review, famously asserted in Marbury v. Madison (1803). Meanwhile, the Federalist Papers, penned by influential figures like Hamilton and Madison, expound on the Court’s duty to interpret the law, safeguard constitutional principles, and maintain judicial independence.

However, recent legal disputes, such as those between Texas and the federal government regarding immigration, highlight the ambiguity surrounding exclusive and concurrent jurisdiction. While dissenting opinions and judicial interpretations vary, a closer examination of constitutional clauses and historical debates suggests ongoing contention over the balance of federal and state powers, particularly in matters of national defense and immigration policy.

Supreme Court

The Supreme Court of the United States holds a unique and crucial position within the framework of the American government. The Constitution meticulously outlines the Court’s powers, duties, and limits. The Federalist Papers explain the Court’s role in interpreting the law and protecting the nation’s principles. Understanding the Supreme Court’s role requires examining both these foundational documents.

First, the United States Constitution says the Supreme Court is the top judicial authority. Article III of the Constitution outlines the Supreme Court’s jurisdiction. It allows the Court to judge cases about the Constitution, federal laws, and treaties. It also lets the Court judge cases between states and cases with foreign diplomats. Yet, its most important power is to review laws and executive actions for constitutionality. This power comes from judicial review (not explicitly mentioned in the Constitution). However, the case of Marbury v. Madison (1803) famously asserted this authority. It is key, as it ensures that the government operates within the limits of the Constitution. That upholds the principles of separation of powers, checks, and balances.

The Federalist Papers are a collection of essays. Influential figures like Alexander Hamilton, James Madison, and John Jay wrote them.¹ The essays played a key role in advocating for the ratification of the Constitution. These papers provide a full understanding of the judiciary’s role. They focus on the Supreme Court. It explains how it maintains the rule of law and protects individual rights. In Federalist No. 78, Alexander Hamilton stressed the need for an independent judiciary. He also said judicial review is necessary to protect the Constitution from legislative overreach. Hamilton argued that the judiciary was the weakest branch of government. It had neither the power of the purse nor the sword. It relied only on judgment and integrity to interpret the law. Further, we see the necessity of judicial independence and the duty of the courts to interpret and apply the law fairly. That demonstrates the importance of the Supreme Court. It underscores the Court’s role in preserving the principles of the Constitution.

The Federalist Papers also show us the Supreme Court’s intended role. It was to shape policy and settle disputes. In Federalist No. 78, Hamilton also said that the judiciary’s role is only to interpret the law and resolve cases. It should not make policy decisions or do partisan politics. This idea of judicial restraint shows the framers’ belief. They thought it was important to keep the separation of powers and protect the integrity of the judicial branch.

Given the above, we will now review how the Supreme Court should address the critical issue of Exclusive and Concurrent powers

Exclusive Powers

The Constitution of the United States lists certain powers for the federal government. The Constitution lists these as exclusive or enumerated powers. They are separate from the powers reserved to the states or the people. Article I, Section 8 of the Constitution enumerates many of these exclusive powers, which include:

• The Power to Tax and Spend: The power to tax and spend is granted to the federal government by Article I, Section 8, Clause 1 of the United States Constitution, commonly referred to as the “Taxing and Spending Clause.” This clause states, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”

• Regulate commerce: The power to regulate commerce among the states and foreign nations is granted to the federal government by Article I, Section 8, Clause 3 of the United States Constitution, commonly known as the “Commerce Clause.” This clause states, “The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

• Currency and Coinage: Article I, Section 8, Clause 5 of the United States Constitution grants the power to coin money and regulate its value to the federal government. This clause states that “The Congress shall have Power... To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.”

• Defense and National Security: The power to provide for the common defense and national security is granted to the federal government by Article I, Section 8, Clause 1 of the United States Constitution, commonly known as the ‘Defense Clause” or “War Powers Clause.” This clause states, “The Congress shall have Power To... provide for the common Defence and general Welfare of the United States.” Additionally, other clauses in Article I, Section 8, such as the power to raise and support armies, provide and maintain a navy, and make rules for the government and regulation of the land and naval forces, also contribute to the federal government's authority in matters of defense and national security.

• Naturalization and Immigration: The power to establish a uniform rule of naturalization, which includes immigration powers, is granted to the federal government by Article I, Section 8, Clause 4 of the United States Constitution. This clause states that “The Congress shall have Power... To establish an uniform Rule of Naturalization.” Note this applies to Naturalization and Immigration; thus, see the “Analysis” section below concerning securing state borders.

• Article I, Section 8, Clause 7 of the United States Constitution outlines the duty to establish post offices and post roads. This clause states that “The Congress shall have Power... To establish Post Offices and post Roads.”

• Bankruptcy Laws: Article I, Section 8, Clause 4 of the United States Constitution grants the federal government the power over bankruptcy. This clause states that “The Congress shall have Power... To establish... uniform Laws on the subject of Bankruptcies throughout the United States.”

These are just a few examples of the exclusive powers granted to the federal government under the Constitution. The federal government has much power in these areas. But, federalism and the system of checks and balances limit this power. They divide power between the federal government and the states. This division intends to prevent any one entity from becoming too powerful.

Concurrent Powers

The federal and state governments in the United States share concurrent powers. That is, the Constitution grants certain powers to both levels of government to exercise powers simultaneously. These powers are not separate. Some examples of concurrent powers under the Constitution include:

• Taxation: Federal and state governments can tax people, businesses, and property. They can tax within their jurisdictions. The federal government imposes income and corporate taxes. State governments levy sales, property, and income taxes.

• Law enforcement and criminal justice: Both levels of government can make and enforce criminal laws. They also maintain law and order and administer justice in their areas. That includes the power to investigate crimes. It also includes prosecuting and jailing criminals.

• The federal and state governments can borrow money to finance their operations. They can also use it for infrastructure projects, which may involve issuing bonds. It also means securing loans or borrowing to fund government spending and investments.

• Establishing Courts: The federal and state governments have the power to create and run courts. These courts interpret and apply the law, settle disputes, and administer justice. The federal judiciary includes the Supreme Court and lower federal courts. State judiciaries consist of state supreme courts, appellate courts, and trial courts.

• Public Welfare Programs: Federal and state governments can provide for the well-being of their citizens. They create social welfare, public assistance, and safety net programs.

• The above “Exclusive Poweres” section states that the federal government can regulate trade between states. It can also regulate trade with foreign nations. But, states can regulate commerce within their borders. That may involve regulating businesses. It may also involve regulating professions, trade practices, and consumer protection within the state.

These are just a few examples of concurrent powers under the Constitution. The division of powers between the federal government and states reflects federalism. Federalism balances central authority with state autonomy. It aims to promote cooperation between different levels of government. Concurrent powers allow flexibility and collaboration. They help address policy issues and respond to the needs of the American people.

In many realms of concurrent jurisdiction, the federal government wields its enumerated powers to supersede state actions. However, certain domains are so fundamental to state sovereignty that they remain shielded from federal intervention. Alexander Hamilton exemplified state taxation in Federalist No. 32. Similarly, at the Virginia convention endorsing the Constitution, future Chief Justice John Marshall echoed this sentiment regarding the state’s deployment of its militia for defense against invasion. Furthermore, in the case of Printz v. United States (1997), the Supreme Court ruled that Congress could not compel state officials to enforce a federally valid law, emphasizing the limits on federal authority over state matters.

Analysis

As explained by constitutional scholar Rob Natelson, “… the Supreme Court has (improperly) rewritten some parts of the Constitution. However, the rest survives, and what follows still is true of most of the document.”² Thus, in recent years, debates about immigration policy have heated up. Proponents and opponents argue fiercely over the government’s role in managing the influx of “migrants.” The federal government often claims to control immigration, but a closer look shows a paradoxical reality. In many cases, the government’s actions foster uncontrolled immigration. Some claim, including this author, that the unfettered influx is an invasion.

The current illegal immigration crisis is an open wound, as exemplified in the ongoing fight between Texas and the federal government. We need to address this issue in light of exclusive and concurrent jurisdiction. Justice Sonia Sotomayor dissented on March 19, 2024, stating that the Federal Government alone controls immigration. That includes letting in or keeping out noncitizens. Yet, this assertion contradicts the Constitution’s structure and the wording of Article I, Section 10, Clauses 2 and 3:

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Federal appeals judge issued an opinion on March 26, 2024. He argued that federal laws on noncitizen entry and removal still prevail when invoking the State War Clause, as quoted above. Yet, closer examination reveals that the strong evidence suggests the opposite. Many scholars doubt Congress’s power to use law to weaken a state’s right to self-defense. References to it and Federalist Papers seem to support an opposing view. The Constitution’s Guarantee Clause is in Article IV, Section 4 states:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

For a state to have concurrent power, the Constitution does not need to recognize it explicitly; the Ninth and 10th Amendments are sufficient. Yet, in some cases, the document does include explicit recognition. Two such cases are the state’s authority to resist invasion (Article I, Section 10, Clause 3) [see above].

Therefore, you will never hear the current administration and most of Congress admit we face an invasion. Never. This cauldron of power seems to have more compassion for the invaders than it does for the average citizen. Just ask a J6 political prisoner or a family that faced an FBI swat team for praying near a Planned Parenthood facility.³

Conclusion

In conclusion, the intricate balance of power established by the United States Constitution underscores the significance of the Supreme Court within the American governmental system. Through meticulous examination of both the Constitution and the Federalist Papers, we gain insight into the Court’s pivotal role in interpreting the law, safeguarding constitutional principles, and maintaining the delicate equilibrium between branches of government.

From its foundational principles articulated in Marbury v. Madison to the elucidation (explaining) of judicial independence and restraint in the Federalist Papers, the Supreme Court’s authority and responsibilities are underscored. It is the apex judicial body and guardian of constitutional integrity and individual rights.

The delineation of exclusive and concurrent powers further emphasizes the complexity of the American federal system. While exclusive powers grant the federal government significant authority, concurrent powers ensure collaboration and flexibility between federal and state entities. However, ongoing debates, such as those surrounding immigration policy, highlight the challenges in interpreting and applying these powers within contemporary contexts.

In navigating these complexities, the Supreme Court is a bastion of impartiality and constitutional fidelity. As demonstrated by Justice Sonia Sotomayor’s dissent and the subsequent legal analysis, the Court’s interpretations play a crucial role in resolving contentious issues and upholding the foundational principles of the Constitution.

Thus, a comprehensive understanding of the Supreme Court’s role, informed by both constitutional text and historical context, is essential in ensuring the continued preservation of constitutional republic principles and the rule of law in the United States.

Parting Shot

Sen. Marsha Blackburn asked U.S. Supreme Court nominee Ketanji Brown Jackson to define the word “woman.”

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Sources

• Understanding the Constitution: Exclusive and Concurrent Powers and Illegal Immigration | Rob Natelson, The Epoch Times, April 1, 2024

• The Debate on the Constitution: Federalist and Anti-Federalist Speeches, Articles, and Letters During the Struggle over Ratification 1787–1788 | Libray of America

• Federalist Papers In Modern Language Indexed for Today’s Political Issues | Mary E Webster, Merril Press, 400 pages, 1999

1. Alexander Hamilton was brilliant and one of the key players who shaped our nation. He also played a crucial role in shaping the financial system of the United States, particularly in establishing a framework for central banking and the issuance of credit. As the first Secretary of the Treasury under President George Washington, Hamilton’s vision and policies laid the groundwork for the nation’s economic stability and growth.

One of Hamilton’s most significant contributions was the establishment of the First Bank of the United States in 1791. Hamilton argued for creating a national bank to manage the government’s finances, stabilize the currency, and promote economic development. The Bank would serve as a central repository for federal funds, issue banknotes, and facilitate government transactions.

Hamilton’s support for a national bank faced opposition, particularly from Thomas Jefferson and his supporters, who believed it exceeded the Constitution’s powers granted to the federal government. However, Hamilton’s argument, articulated in his “Report on the National Bank,” persuaded Congress to approve the bank’s charter. Today, we know that Hamilton’s banking prowess laid the foundation for the disaster we know as Creature from Jekyll Island.

2. Understanding the Constitution: Exclusive and Concurrent Powers and Illegal Immigration | Rob Natelson, The Epoch Times, April 1, 2024

3. If progressives formed the J6 event, I would advocate that those involved be afforded protection under the Constitution. Sadly, few on the “other side” of this issue could care less about protections unless it concerns a fellow traveler.

The Constitution Artice 1, Section 9, Clause 2 orders that the right of habeas corpus shall protect the people of the United States.* By using his right of habeas corpus, a person who has been arrested can force the jailer to take him to a judge. If it can be proved that there is good reason for holding the person, they must be charged with a crime. If not, they must be set free. In some countries, kings and dictators have put people into prison without accusing them of a crime or giving them a trial. Habeas corpus is supposed to prevent this from happening in the United States. The right of habeas corpus may be set aside only in times of war or rebellion. The right goes back into effect as soon as the danger is over.

* The words “habeas corpus” mean literally “you may have the body.” They are the beginning of a Latin sentence, meaning the prisoner must be brought before the court.

Based on the above, I challenge anybody to tell me how the J6 political prisoners are being afforded their protections.